Citation NR: 9611475
Decision Date: 04/26/96 Archive Date: 05/09/96
DOCKET NO. 92-20 203 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan
THE ISSUE
Entitlement to an increased rating for the service-connected
post-traumatic stress disorder, currently evaluated as 30
percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The veteran and his friend
ATTORNEY FOR THE BOARD
Roberto D. DiBella, Associate Counsel
INTRODUCTION
The veteran had active duty from July 1966 to April 1969.
In a decision of March 1989, the RO granted service
connection and assigned a 10 percent rating for post-
traumatic stress disorder, competent, effective on September
13, 1988. In a decision of May 1990, the RO increased the
rating to 30 percent, effective on September 13, 1988.
This appeal arises from a March 1991 rating decision by the
RO. By a decision of June 1994, the Board of Veterans’
Appeals (Board) remanded the case for additional development
of the record. The case is again before the Board for
appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran maintains, in essence, that his disability is
severe enough to warrant an evaluation of 100 percent and
that this condition has made him unemployable.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the evidence favors the claim for increase
and supports the assignment of a 70 percent rating for the
service-connected post-traumatic stress disorder.
FINDINGS OF FACT
1. All relevant evidence for an equitable disposition of the
veteran's appeal has been obtained.
2. The veteran’s post-traumatic stress disorder is shown to
be productive of severe impairment of social and industrial
adaptability.
CONCLUSION OF LAW
The assignment of a 70 percent rating for the service-
connected post-traumatic stress disorder is warranted.
38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R.
§§ 3.102, 3.321, 4.7, 4.16(c) , 4.132 including Diagnostic
Code 9400 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Historical
Private medical records from August 1989 and September 1989
diagnosed the veteran with post-traumatic stress disorder,
chronic, which would require intensive, long-term
psychotherapy. He was hospitalized in November 1990 and the
pertinent treatment was for acute depression, suicidal
ideation, anxiety frustration and post-traumatic stress
disorder symptoms. The veteran was evaluated twice at a
sleep disorder center at the University of Michigan and the
clinical findings noted in March 1991 that he had sleep apnea
syndrome of moderate severity, primarily obstructive,
associated with mild hypoxemia and moderate sleep
disturbance; and the clinical findings in June 1991 revealed
that his severe disturbance of sleep continued to persist.
He was again hospitalized in March 1992 at a VA facility and
his major complaints were for anger and being unable to
control his temper and his score of the Global Assessment of
Functioning (GAF) scale was 51. During a hospitalization
from November 1992 to February 1993 for post-traumatic stress
disorder, the veteran’s score on the GAF was 70 to 61.
Outpatient VA medical records from August 1993 to April 1994
noted that the veteran had problems sleeping and with his
work schedule; he was not able to motivate for his job,
working only 1 to 2 days per week; he had irritability,
anger, and resentment; and, he was diagnosed with post-
traumatic stress disorder, dysthymia disorder, passive
aggressive personality features, and his score on the GAF was
80. In addition, the veteran was treated for post-traumatic
stress disorder by a private psychiatrist on almost a weekly
basis from January 1988 to April 1993.
A VA examination was performed in February 1995 when the
veteran complained of difficulty sleeping and having night
terrors, having visual hallucinations, irritability, and
being detached from others His reported that his last day of
employment had been on July 10, 1994 and his employer had
refused to re-employ him because of the medication he was
currently taking. The pertinent diagnosis was that of post-
traumatic stress disorder , consider intermittent explosive
disorder, and consider major depressive disorder, Axis I;
consider personality disorder, not otherwise specified, Axis
II; sleep apnea, Axis III, severe psychosocial stressors,
Axis IV; and a score on the GAF of 40, Axis V.
The veteran appeared along with his friend for a personal
hearing before the Board on March 1993 when he testified that
he worked only 89.1 days in 1992 and the other 260 days were
spent at VA hospitals or with doctors treating him for post-
traumatic stress disorder, and that he had to even use his
vacation days for treatment visits which resulted in him
being counseled by his employer for abusing sick and annual
leave. He indicated that he suffered night terrors and only
slept 79.5 minutes a night based on a University of Michigan
study; he wanted to get away from everyone and he was
suicidal 7 times. At the time, he believed that he was 25
percent efficient at work due to being angry and losing his
temper, and not being able to relate to people. The
veteran’s friend testified that the veteran slept with a
weapon under his pillow, socialized very little, was very
withdrawn, and did not have friends or engage in social
activities.
While the veteran’s employment records do not show his
absentee rate in 1992, they do show that from 1988 to 1991,
he had been absent approximately 274 days. In addition,
statements submitted by the veteran’s ex-wife and friends
reported that he had been divorced twice, had had a high
absentee rate at his job, wanted to be alone and could not
tolerate a crowded environment, was withdrawn and socialized
very little and had few friends.
II. Analysis
The Board finds the veteran's claim for increased
compensation benefits is "well grounded" within the meaning
of 38 U.S.C.A. § 5107(a). The United States Court of
Veterans Appeals (Court) has held that, when a veteran claims
a service-connected disability has increased in severity, the
claim is well grounded. Proscelle v. Derwinski, 2 Vet.App.
629 (1992).
The evaluation for the veteran’s service-connected post-
traumatic stress disorder is based on the degree of
impairment of his social and industrial adaptability. A 30
percent evaluation requires definite impairment in the
ability to establish or maintain effective and wholesome
relationships with people, and psychoneurotic symptoms which
result in such reduction in initiative, flexibility,
efficiency and reliability levels as to produce definite
industrial impairment. A 50 percent evaluation requires that
the ability to establish and maintain effective or favorable
relationships with people be considerably impaired and by
reason of psychoneurotic symptoms, the reliability,
flexibility, and efficiency levels are so reduced as to
result in considerable industrial impairment. 38 C.F.R.
§ 4.132, including Diagnostic Code 9400 (1995).
A 70 percent evaluation requires that the ability to
establish and maintain effective or favorable relationships
with people be severely impaired and that the psychoneurotic
symptoms be of such severity and persistence that there is
severe impairment in the ability to obtain or retain
employment. A 100 percent evaluation requires that attitudes
of all contacts except the most intimate be so adversely
affected as to result in virtual isolation in the community;
or there be totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes (such as fantasy, confusion,
panic, and explosions of aggressive energy) associated with
almost all daily activities resulting in a profound retreat
from mature behavior. The individual must be demonstrably
unable to obtain or retain employment. 38 C.F.R. § 4.132,
including Diagnostic Code 9400 (1995).
In evaluating the veteran’s service-connected disorder, the
Board notes that the veteran’s level of social and industrial
functioning has been shown to have been severely impaired for
at least several years. The most recent examination findings
confirm this level of incapacity. Based on his recent
evaluation, a GAF score of 40 was assigned by the examiner.
Testimony provided at the veteran’s personal hearing and
submitted statements further confirmed that he avoided
socializing and had no friends. Furthermore, the VA
hospitalization and regular psychiatric treatment reports
confirm that he has experienced a high absentee rate at work,
and by his own testimony, he has stated that he was only 25
percent efficient when at work.
Consequently, the Board is of the opinion that the veteran’s
service-connected disability results in severe impairment of
his ability to establish and maintain effective or favorable
relationships and his ability to obtain or retain employment.
Accordingly, an increased rating of 70 percent is assignable
in accordance with the provisions of 38 C.F.R. § 4.132
including Diagnostic Code 9400.
ORDER
An increased rating of 70 percent for the service-connected
post-traumatic stress disorder is granted. The appeal is
allowed subject to the regulations governing the payment of
VA monetary benefits.
REMAND
The Board cannot rule on the veteran’s claim for a total
rating based on being individually unemployable due to
service connected disabilities until this matter has been
adjudicated by the RO. See Harris. Consequently, the Board
finds that the case must be remanded for additional
development.
Consequently, the case is REMANDED to the RO for the
following action:
1. The RO should take appropriate steps
to contact the veteran in order to obtain
information pertaining to medical
treatment that he has received for post-
traumatic stress disorder since January
1991. Based on his response, the RO
should undertake to obtain copies of all
records from the identified treatment
sources and associate them with the
claims folder.
2. The RO should take the appropriate
steps to secure copies of all of the
veteran’s VA treatment records since
April 1994 and associate them with the
claims folder.
3. The veteran should be afforded a
special VA psychiatric examination in
order to determine the current severity
of his service-connected post-traumatic
stress disorder. All indicated testing
in this regard should be accomplished.
The claims folder should be made
available to the examiner for review
before the examination. Based on his/her
review of the case, it is requested that
the examiner provide a full multiaxial
evaluation, including a score on the GAF
scale on Axis V with an explanation on
the score’s meaning. In addition, it is
requested that the examiner offer an
opinion as to whether the veteran is
precluded from performing substantially
gainful employment due to service-
connected disability.
4. After the development requested above
has been completed, the RO should again
review the veteran’s claim. This should
include consideration of the provisions
of 38 C.F.R. § 4.16(c). If the benefits
sought on appeal remain denied, the
appellant and his representative should
be furnished a supplemental statement of
the case and given the opportunity to
respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans’ Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402 (1988). The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans’
Appeals. Appellate rights do not attach to those issues
addressed in the remand portion of the Board’s decision,
because a remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. § 20.1100(b) (1994).
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